United States District Court, D. South Dakota, Northern Division
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
AND ORDER DENYING CERTIFICATE OF APPEALABILITY
CHARLES B. KORNMANN United States District Judge.
pleaded guilty to second degree murder in the Third Judicial
Circuit, Codington County, South Dakota and was sentenced to
life in prison without parole in 1998. Her co-defendant,
Jessi Owens, also pleaded guilty to second degree murder and
was also sentenced to life.
was age 17 at the time of the offense. Following the United
States Supreme Court's decision in Miller v.
Alabama. 567 U.S. 460, 132 S.Ct. 2455, 2460, 183 L.Ed.2d
407 (2012), that life imprisonment without the possibility of
parole for those under the age of 18 at the time of their
crimes violates the Eighth Amendment, Owens' life
sentence was modified to a term of 40 years in prison on
October 13, 2013. The State's appeal of the reduction in
sentence was dismissed on January 10, 2014.
was age 19 at the time of the offense. Over one year after
Owens' reduction in sentence, petitioner filed, in
January 2015, a petition for a writ of habeas corpus in state
court contending that her sentence became disproportionate to
her co-defendant's sentence when her co-defendant was
granted a reduced sentence. Counsel was appointed to assist
petitioner in litigating her state court habeas case.
state court habeas case was denied procedurally and on the
merits. The South Dakota Circuit Court held that
Miller did not apply to her because she was not a
juvenile at the time of the offense and she therefore failed
to qualify to file a second or successive application for a
writ of habeas corpus based upon Miller's new
rule of constitutional law.
the state court held on the merits that petitioner's
sentence was not disproportionate to Owens' sentence and
therefore did not violate the Eighth Amendment. The state
court petition was denied in November 2015. Because she was
essentially denied the right to file a petition for a writ of
habeas corpus, the decision was not appealable to the South
Dakota Supreme Court.
October 24, 2016, petitioner filed the instant petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner contends that her petition is timely because the
United States Supreme Court held on January 25, 2016, in
Montgomery v. Louisiana, U.S., 136 S.Ct. 718, 193
L.Ed.2d 599 (2016), that Miller had announced a new
substantive rule that was retroactive on collateral review.
federal habeas case suffers the same procedural bar as did
her state court habeas claim. Petitioner's challenge is
subject to the one year statute of limitations set forth in
the Anti-Terrorism and Effective Death Penalty Act of 1996
("AEDPA"), 28 U.S.C. § 2244(d)(1). Pursuant to
limitation period shall run from the latest of-
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2244(d)(1). Petitioner was not a juvenile at
the time of her offense. Miller therefore does not
apply to her case. The holding in Montgomery which
made Miller retroactive does not change the fact
that Miller is not applicable to petitioner.
Petitioner cannot rely upon either Miller or
Montgomery to extend the one year statute of